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‘Right of Way’ under the Telecommunications Act, 2023: Exposing Lacunae, Missed Aspects and Way Forward

Updated: Feb 10

by Aditi Garg, Natasha Mittal*



Introduction

India is currently the second-largest telecom market in the world, with 1,173.89 million telephone subscribers as of June 2023. Over the past ten years, the country has seen a rapid increase in its subscriber base. With the telecommunications sector growing in India with leaps and bounds, a need was felt to align the legal regime to aid such growth. Presenting one of the biggest overhauls in the telecommunications industry of India, the Telecommunications Bill, 2023 received presidential assent after this much-awaited bill was passed in both houses of the Parliament. While replacing the 138-year-old Indian Telegraph Act, of 1885, along with the Indian Wireless Telegraphy Act, of 1933 and the Telegraph Wire (Unlawful Protection) Act, of 1950, the Telecommunication Act, 2023 (“the Act”) brings amendments to the Telecom Regulatory Authority of India Act, 1997.

Some of the major features of the Act include simplification of the licensing regime, the government’s power to suspend, control or manage telecommunication services in the event of public emergency, national interest etc, provisions for the administrative allocation of the satellite spectrum, creation of Digital Bharat Nidhi and the adjudication procedure. Chapter III of the Act (“the Chapter”) comprehensively covers the provisions on the installation and upkeep of their networks on both public and private properties under the heading “Right of Way for Telecommunication Network”. While the consolidated and comprehensive provisions on ‘Right of Way’ (the RoW) are a welcome development, the authors in the present blog present observations identifying gaps in the RoW provisions and present suggestions on how the rules to be notified under this section can plug in the gaps.


Right of Way Before the Act

Before the Act, the Indian Telegraph Right of Way Rules, 2016 (“the Rules”) governed the RoW regime in India. The Rules were notified by the Central Government by the powers conferred upon it under sub-section (1) and clause (e) of sub-section (2) of section 7 read with sections 10, 12 and 15 of the Indian Telegraph Act, 1885. The purpose of the Rules was to make the establishment and maintenance of underground and overground telegraph infrastructure easier. The Rules provided a framework for the states to adhere to when creating their local RoW procedures and apply to the relevant local authorities in the states such as municipalities. To further reduce the roadblocks in the rollout of the 5G networks in the country, the Rules were amended in 2017, 2021, 2022 and 2023. However, the rules were insufficient to meet the aspirations of digital connectivity and there were calls for making ROW legally enforceable.

A World Bank study found that every 10% increase in broadband penetration boosts GDP growth by 1.38 % in developing countries. India is currently the 2nd largest telecommunication market and has the 3rd highest number of internet users in the world. The role of liberal ROW provisions in facilitating access to telecommunication services in different parts of the country has been highlighted to tackle the issue of lack of accessibility to such services. Thus, nationwide legally enforceable ROW provisions were the need of the hour and the same was realised through the 2023 Act.


Salient Features of Right of Way under the Act

  • Principle of Non-Discrimination and Non-Exclusivity: To remove the bottlenecks in providing the right of way for telecom infrastructure, the Act under Section 13 encompasses the principle of granting the right of way on a non-discrimination and as far as practicable, non-exclusive basis.


  • Application for RoW: A “facility provider” that includes the Central Government, its contractor, sub-contractor or agent or authorised entity may apply for a RoW to any public entity or private persons to access the land held by them to check the feasibility of establishing telecom related infrastructure or to establish such infrastructure. An obligation is placed upon the public entity to grant permissions upon the aforesaid application in an expeditious manner and within such timelines as shall be prescribed. Further, the government by way of rules (yet to be notified) shall fix the maximum amount of compensation that may be granted. The public entity may reject the application based on reasonable grounds that have to be recorded in writing.

  • In the case of a private person, the consideration may be arrived at mutually. If a private party does not provide the RoW as requested, the Central Government through itself or through any other authority that it designates for this purpose, may proceed to grant the RoW to the facility provider if it deems that such RoW should be granted for the public interest. For such cases, the terms and conditions including right of way and compensation for damages shall be prescribed by way of rules.


  • Status of Telecom Infrastructure vis a vis the Property of the Public Entity or Private Person: The Act provides that the telecommunication network established on any property shall be separate from that property and will not be subject to any claims, liquidation or any encumbrances pertaining to the said property, proofing telecom infrastructure of lengthy litigious claims.


  • Dispute Resolution: The District Judge has been designated as the final authority in disputes pertaining to compensation under the provisions of the Chapter. While the power of final adjudication on matters other than that specified under Section 18(2) (related to compensation) has been conferred upon the District Magistrate or any other authority as notified by the Central Government within whose jurisdiction is property is situated.


Lacunae, Missed Aspects and Way Forward

While the Act is lauded by the industry for the legal enforceability of RoW provisions, some overarching concerns need to be redressed by the government:

  • Social Impact

Repeatedly, the environmental and social ramifications of such telecom infrastructure are rolled under the rug, a trend that continues to persist in the present legislation as well. The aspirations of ‘Digital India’ cannot be achieved without the participation of ‘India’, the people of the country. The provisions of the Act do not accommodate for the location of the proposed telecom infrastructure and make the process of establishing such an infrastructure a private activity. However, laying such an infrastructure may have far-reaching public implications like making a single park in the locality non-accessible due to the construction of a tower. In the past, residents have opposed such construction due to one concern or the other. To tackle the issue, a robust community consultation is required to mitigate any opposition under the aegis of a supervisory body like the Telecom Regulatory Authority of India which has been established to regulate telecom services in the country. Presently, the absence of such a system makes RoW provisions vulnerable to challenges.


  • Environmental Impact

The installation of telecom infrastructure in wildlife-rich areas has been given scant attention under the Act. Way back in 2012, the Expert Committee set up by the Ministry of Environment and Forests issued an advisory on the use of mobile towers to minimize their impact on wildlife and acclaimed that Electro-magnetic radiations interfere with the biological systems have varying negative impacts and that regular auditing and monitoring of EMR should be done especially in ecologically sensitive areas. It doesn’t encourage any alternative solutions or safeguards recommended by the committee such as the prevention of overlapping of high radiation fields for new towers to not obstruct the flight path of birds and sharing of passive infrastructure if made mandatory for telecom service providers can minimize the need for additional towers. The omission of these considerations in the legislative framework may give rise to potential health hazards for wildlife residing in the impacted regions. Such hazards could manifest as disturbances to reproductive, dietary, and migratory patterns among the affected faunae.

Rules pertaining to compensation should factor in the environmental damage and encompass an equitable and environmentally friendly regime which may include substitution of trees uprooted at a different location. There is a need to institutionalize the practices whereby adjudicating authority i.e. district magistrate should sufficiently incorporate factors like environmental damage while awarding compensation. Such a regime is already incorporated under the Electricity Act, 2003 under Section 68 whereby compensation may be awarded by Executive Magistrate or such authority when trees are felled to establish overhead lines. However, the rules under the Act should not limit it to monetary compensation but encourage substitution.



  • Incorporation of Sustainable Practices

The duty of Government does not end at the Act but becomes more pronounced while formulating rules under it. At present, there is no indication under the provisions of the Act that allows the government to ensure that the best and sustainable industry practices are followed. In a paper on ‘Rights of Way in India’, GSMA  (a non-profit industry organization) recommended the “dig only once” policy aligning with the goals of minimizing disruptions, reducing costs, and optimizing the use of resources. In the said policy, the laying of utility duct/optical is a part of the construction design policies of all Central and State level authorities and agencies in charge of all infrastructure approvals and projects whether private or public. Another recommendation included the use of street furniture available for small cell site deployment leveraging existing infrastructure minimizing the need for new construction, thereby promoting sustainability. The government may incentivize such practices by way of schemes but institutionalization makes a more profound mark.


Conclusions

As we await the notification of rules under the RoW provisions of the Act, it is hoped that the rules plug in the loopholes. Liberalizing the RoW provisions was a necessary step to ensure the efficient rollout of the 5G services but the systematic processes should not compromise on the needs and aspirations of the larger ecosystem. Redressal of the abovementioned concerns shall remain the key to answering the question of whether RoW is a success or a failure. Its success will be contingent on its ability to bridge the gap between its aspirational goals and the practical realities of implementation. In essence, while the Telecommunication Act, of 2023 represents a significant step forward, addressing these lacunas is imperative to ensure the sustained effectiveness, credibility, and environmental responsibility of the legislation in the dynamic landscape of India's telecommunications sector.


*Aditi Garg is a third year student and Natasha Mittal is a first year student at Rajiv Gandhi National University of Law,Punjab at the time of publication of this blog.

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